The Search for Justice

by Robert L Shapiro

  It would be foolish to try to weigh one victim against the other, to say that one person was less or more vulnerable than the other. However, the press had often tended to treat Goldman ’s death as secondary to Nicole ’s, as an afterthought or a footnote. It was clear inside that courtroom that the jury saw him as an equal victim.

  During Lakshmanan ’s testimony, O.J. was obviously distraught and tearful, breathing heavily, rocking back and forth in his seat. Bob Kardashian had returned to the defense table, positioning himself not just to comfort O.J. but also to shield him from the camera.

  We adjourned early one afternoon, as the jurors were overcome by the photographs. Two actually left the jury box before officially being excused. I had seen the pictures often enough to believe I would be immune when they were actually put on the screen. However, the obvious grief in the room combined with the images on the screen was overwhelming. I grew lightheaded and dizzy, and my chest hurt. At one point I even took my watch off and checked my pulse. I thought of asking Ito for a recess or an early adjournment, but knew that if the request came from me, the press would ’ve announced that Shapiro had gone out with a heart attack.

  Dr. Lakshmanan ’s testimony tied with Dennis Fung ’s for marathon length: eight days. As I prepared to cross-examine him, I felt the jury had been bored by too much detail, some of it painfully numbing. My mission was to hammer home our major points. I went to the far podium so I wouldn ’t be distracted by O.J. ’s comments, or Johnnie ’s. Neither one claimed expertise in forensic pathology, and their suggestions were distracting, throwing my rhythm off.

  Lakshmanan admitted under my questioning that in his entire career he had never testified in place of—nor heard of anyone else testifying in place of—the coroner who had actually performed the autopsy in question, especially when that coroner (Dr. Golden) was available to testify. I hoped that this would make the jury wonder why Lakshmanan was on the stand.

  Lakshmanan had been asked on direct examination about possibilities—vague medical possibilities. I wanted instead to narrow the focus. “Reasonable medical certainty” is a term doctors use to describe conditions or opinions, rather than speculation. I had no doubt that any question I asked about reasonable degrees of medical certainty would be answered in a way favorable to the defense, since I believed Lakshmanan was an honest witness. Even though he was appearing for the prosecution, he wouldn ’t risk ridicule by others in his profession by saying he could make an absolute determination when he clearly could not.

  “Can you tell us with a reasonable degree of medical certainty how many people are responsible for these homicides?” I asked him.

  “No,” he answered.

  “Can you tell us with a reasonable degree of medical certainty how many different weapons were used to accomplish these homicides?”

  “I already opined, saying that a single-edged knife could have caused all the knife wounds,” he said. “But with reasonable medical certainty, I cannot exclude a second knife.”

  Assistant district attorney Kelberg had taken eight days to convince the jury that a guilty verdict could be built upon speculation, conjecture, and theories that were “consistent with” his hypotheticals. Dr. Lakshmanan ’s answers to my cross-examination reminded them of the need for proof without doubt. The only hypothesis about which there was no doubt was that these two people had died by virtue of having their throats cut. By what, by whom, by how many—no one could say.

  Until that day, I ’d believed that my cross-examination of Irwin Golden in the preliminary was my career best; in the trial, I was proudest of the work I did with Lakshmanan. Afterward a reporter wrote, “Within ten minutes, Shapiro destroyed eight days of testimony.”

  As the prosecution moved toward closing its case and we began to work on presenting the defense case, everyone was getting a little punchy. Serious legal debates and fights at sidebars were often punctuated with bad jokes, knowing insults, or the kind of humor you might see at summer camp.

  Even though the jurors had become legendary for their impassive facial expressions, they were each very different. Some took notes, others didn ’t. Some stayed alert and awake throughout even the most daunting scientific testimony; others struggled, and even dozed. Over the months we felt we ’d come to know them, their individual moods and reactions. So, instead of referring to them by their numbers or seat locations, we ’d often call them by the nicknames we ’d given them.

  “Foo-Foo Lemieux took a lot of time with her hair today,” someone observed of one juror.

  “The Demon is in a bad mood today,” someone else would say. “I don ’t think she likes us much.”

  “Touchy-Feely isn ’t paying much attention,” a third would notice. “Neither is Horsehair.”

  “I wonder how Two Tons of Joy will vote when this is over,” another would say, looking over at two of the heavier women in the jury box. And we all knew which way Grampa would vote.

  It wasn ’t that we didn ’t take them seriously. It was more that we took them too seriously, and if we thought too much about who they were and what they were thinking, we wouldn ’t be able to get through the rest of the trial.

  Chapter Nineteen

  That glove has holes in it, and worn spots. If they knew anything at all about O.J. Simpson, they ’d know the man doesn ’t own anything that ’s worn, or with holes. He barely tolerates the wrinkles in his jail uniform. They say they ’ve convicted hundreds of people with less evidence than this. If they ’ve put people away on less than this… I ’m worried.

  —BILL PAVELIC

  In mid-June, Richard Rubin, the former vice president of the Aris Isotoner Company, had flown out from New York to testify about the brown leather glove. During a break, while O.J. was in the lockup, Chris Darden told Judge Ito at sidebar, “I ’m going to ask O.J. to try on the gloves.”

  “That ’s completely inappropriate,” Johnnie said. “We ’ll object.

  “We ’re going to take this up on the record later,” said Ito.

  Rubin walked over to the evidence table, put on a pair of thin latex gloves, and began to examine the leather gloves as if they were ancient Egyptian tapestries. Gingerly, he picked the right one up, looking first at one side, then the other. After he put it down, he picked up the left and conducted a similar inspection. After he ’d put both gloves back down again, I looked over to the prosecution table and asked Chris Darden and Cheri Lewis if they objected to me examining the gloves myself. “Go right ahead,” Lewis said, reminding me to put latex gloves on first, which I did.

  And then I did something that to my knowledge no one else had done. In front of everyone, I put the leather gloves on. Yet nobody seemed to be paying any attention to me. I then very quickly took the gloves off and headed for the lockup.

  I walked up to O.J. and said, “Show me your hand. Palm up.” He put his hand against mine. Each finger was a half-inch or more longer than mine; his palm at its widest was at least an inch wider than mine.

  “You ’re not going to believe this,” I said to him. “But I just tried the gloves on. They fit me, although they ’re a little loose at the wrist. But there is no way they ’ll fit you.”

  “I told you!” he exclaimed. “Those gloves are not mine. Bob, I ’ve been telling you guys that all along! Thank God!”

  “Juice,” I said, “when the jury comes back in, Darden ’s going to ask you to put the gloves on. We ’re going to object, for the record, but I know Ito ’s going to allow it. I want you to walk in front of the jury, put the glove on, try as hard as you can to get it on—because believe me, it ’s not going to fit—and then hold your hand up in front of them like you ’re carrying the Olympic torch.”

  When I left the lockup, I walked over to Johnnie. “Try the gloves on,” I said quietly. “You ’re in for a surprise.” After he ’d done it, we just looked at each other. Our case was at a turning point, and Chris Darden was going to take us through the turn, just like the engineer on a train. He was going to brea
k The Rule and ask a question he didn ’t know the answer to.

  The demonstration took place exactly as I ’d expected. Cochran and O.J. and I, escorted by a bailiff, approached the jury box. As O.J. was putting the gloves on, Darden instructed him, “Pull them on, pull them on.” O.J. did as he was told, turned to Darden, and said, “They don ’t fit. See? They don ’t fit.” And the jury heard him. He ’d spoken to them, and he wasn ’t going to be cross-examined on it.

  The prosecution tried to scramble. They argued that the gloves didn ’t fit because of the latex gloves that they ’d insisted everyone wear underneath. Maybe it was because the gloves had shrunk, because of the blood on them. We countered with the results of a test showing that blood could not have shrunk the gloves. Maybe he was exaggerating or acting—although then the joke became that he ’d never been a very good actor to begin with, why would that change now? Rubin would testify about the special stitching and the glove lining, which might have shrunk. Extra-large should fit O.J., Rubin said. But it didn ’t matter. The gloves didn ’t fit.

  For months, critics had been lambasting the “Dream Team,” saying that the whole trial came down to how much money O.J. was prepared to spend to buy himself a defense. Well, if anything showed what the defense was up against, it was Bill Bodziak, and the FBI ’s investigation of possible shoe patterns found at the crime scene.

  The FBI had examined the L.A.P.D. photographs of the blood patterns at Bundy. Among those patterns was what appeared to be a shoe sole. They sent that pattern around the world to determine the manufacturer of the sole, tracing it to a small factory in Italy. The manufacturer traced the sole to two companies that had bought the piece to be used in their shoes. Bruno Magli, one of the shoe companies, had used the sole on two limited styles and estimated that only 300 pairs had been made in size twelve. The FBI traced when and where the shoes were sold retail in the United States and went through every receipt in Bloomingdale ’s in New York City to see if they had been purchased there; they had not. They contacted additional retailers throughout the country in an effort to show that the shoes could have been purchased by O.J. Simpson. They were unsuccessful in this unprecedented investigation.

  Then they brought in what they believed to be a duplicate pair of the shoes that fit the pattern. When we took them into the lockup under Magnara ’s supervision, O.J. took one look and said, “I ’d never wear those ugly-ass shoes. They went through my closet. They know what kind of shoes I wear.”

  Bodziak, an expert witness who had been with the FBI ’s forensic laboratory for ten years, came into court on June 19 to testify about the sole pattern. He looked every bit the part of an FBI agent: short dark hair, lean fit body, and an air of discipline that I suspected would be hard to break.

  Bailey was going to do the cross on Bodziak, in spite of my objections. Scheck and Neufeld were equivocal, and Bob Blasier was cautious. “We ’ve worked with him, brought him up to speed,” Blasier said. “But I ’m not sure he ’s done the work.”

  Between the direct examination and the cross, Bailey went into the back room with a clothing bag and changed suits. He ’d been wearing a gray suit in the morning; when he began his cross-examination, he had on a blue pinstripe.

  Bailey ’s cross was all over the place, going off on tangents. He misstated the evidence that was brought out on direct examination, calling the shoe a twelve and a half when it was a twelve, and a European size forty-six and a half when it would have been a forty-six. He was frantically trying to embarrass a witness who was calm, cool, articulate, and professional. And Bailey was breaking his own cardinal rule: Unless there ’s something to accomplish on cross-examination, less is more.

  During the break, O.J., Johnnie, Carl, and I went into the lockup together, and Johnnie jumped all over Lee.

  “I told you to stay on point,” he said. “You promised you would. You ’re trying to show how smart you are, and all you ’re doing is showing how smart he is.”

  To his credit, Lee was chastened, and he went back to conduct a more focused, to-the-point cross.

  Nevertheless, O.J. was livid at Bailey ’s performance. “That ’s it, I don ’t want to see him up in court again. The man will do no more witnesses.” It was something I ’d been hearing for months, but it was a pledge nobody would stick to.

  On June 21, Cochran and Darden were each fined $250 for trash-talking at a sidebar. Darden had only $112 in his wallet, and Ito ordered him to turn it over immediately. The judge then reduced both fines to $100. I offered to pay half of Cochran ’s fine, saying, “We ’re a team.”

  On June 23, Peter Neufeld cross-examined Dr. Bruce Weir, a respected population geneticist. The issue at hand was the possibility or likelihood of people sharing the same DNA characteristics. Neufeld had done his homework and was able to discover mathematical errors in Weir ’s calculations—errors that worked against O.J.

  Weir was dumbfounded. “I ’ve made a mistake,” he said. “I ’ll have to live with this the rest of my life.” At 10:30 there was a brief recess. “I ’ve heard so much of this stuff,” O.J. said, “that by the end, I ’ll know more about DNA than Johnnie Cochran does.”

  During the break, as often happens, Weir went out, conferred with the prosecutors, and came back to court a somewhat better witness. Although he ’d improved, he had not recovered. I suggested then to Peter that he wind up his cross and just leave it alone.

  I had been watching the jury ’s faces as the scientific witnesses paraded on and off, giving their jargon-filled testimony and statistics. I didn ’t believe for a minute that they understood the specifics of what they were hearing. Occasionally, just to check my theory, I ’d talk to the reporters, to see if they understood the scientific testimony. If they had problems, if they had questions, if they didn ’t understand, it was clear to me that the jury wouldn ’t understand either. The reporters could bring on experts to explain; the jury would have to rely on themselves. And I frequently found that the reporters were confused. But nobody would forget Dr. Weir, a prosecution expert, saying, “I made a mistake. I was wrong.”

  During Weir ’s direct examination, Neufeld was once again sanctioned, for talking too loud at a sidebar conference. He was fined two hundred and fifty dollars, and he was furious. Throughout the whole trial, Ito was tougher on Peter Neufeld than on any of the rest of us. In spite of my continued reassurances that it wasn ’t personal, that Ito actually respected him, Neufeld was adamant. “No judge has ever treated me this way,” he said. “I ’m not paying the money. I ’m going to jail.”

  I talked to Johnnie, and we agreed that it wouldn ’t look good for one of our lawyers to land in jail for contempt. Since I had paid Peter ’s last fine, Johnnie would pay this one.

  Mid-morning on the day Weir testified, Kardashian faxed us asking for a late-lunch meeting at Martoni ’s on Beverly Drive. Johnnie, Carl, Skip Taft, and I met with Kardashian. Bailey, who ’d already had lunch, stayed at the courthouse.

  “We ’re all very unhappy with Bailey,” Skip Taft told us. “We don ’t want him participating in the courtroom anymore.” Bob Kardashian concurred with Taft. Lee ’s work on the case had ceased to be about O.J., or on behalf of O.J.—it was about his own reputation, his own ego. He was going to solve the case, he was going to be the hero.

  The immediate problem of taking Bailey out of the courtroom was that he ’d been assigned to argue a motion to prevent the prosecution from introducing certain hair and fiber evidence. “When am I going to argue my motion?” Lee kept asking Johnnie.

  “See Carl,” Johnnie would tell him. Once again, Carl was the designated hatchet man. He did all the dirty work. In fact, he did all the clean work. He did all the work.

  Ultimately, after discussions with Neufeld, Blasier, and Scheck, it was decided that it was okay for Lee to do hair and fibers. Blasier would go through the science with him and be at the table when he did the cross.

  When we told O.J. that contrary to his expressed wishes, Bailey would be back
in court, Johnnie wasn ’t in court that day. He ’d gone to San Francisco for an interview and also to visit O.J. ’s mother. This was typical of the way Johnnie would let us know about his side trips. “I ’m going to go up and see O.J. ’s mother,” he ’d say. “And by the way, while I ’m up there, I ’m going to do an interview.”

  The Demon was reading a John Grisham novel, The Rainmaker. We had seen her walk out with it; somebody said that it dealt with a sports hero who was a wife beater. Cochran called the book to Judge Ito ’s attention. Ito called the juror to a sidebar and told her he ’d have to take the book away. She was mad and sulked the rest of the day. When Ito returned the book to her a few days later, she looked over at the defense table and gave us a caustic smile.

  The prosecution ’s FBI hair-and-fiber witness, Doug Detrick, testified in late June and into the first week of July. At one point, Bob Blasier got a look at Detrick ’s notebook and found an important report that had been sent to the D.A. ’s office. We had not received it in discovery. Information from this report was incorporated in a prosecution graphics board exhibit, and specifically mentioned an exclusive kind of fiber that was standard in the Bronco. Blasier objected strongly to the introduction of this material and asked that it not be admitted.

  Ito had been getting more and more concerned about discovery violations as the case went on, and he found this one to be particularly egregious. He decided to bar the evidence completely, saying that it was too late for the prosecution to introduce it.

  In the world of scientific analysis, hair and fibers carry only limited weight. That ’s because experts cannot conclude absolutely that a hair or fiber from a sample is the same as a hair or fiber that is randomly found. The best they can say is that one is “consistent with” the other. Marcia Clark was well aware of this; however, she kept using the word “match” when talking about the hair and fibers. Bailey, properly, kept objecting. Clark apologized, said it was a slip of the tongue, and then did it again. And again. Bailey objected again, his hands and his voice both shaking. Finally, Judge Ito had had enough.